DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
The amendment filed 09 December 2025 has been entered. Claims 1-9, 11-12 and 14-22 are currently pending in the application. Claim 12 is withdrawn. The rejections of record from the office action dated 12 September 2025 not repeated herein have been withdrawn.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-9, 11, 17-19, and 21, are rejected under 35 U.S.C. 103 as being unpatentable over Holland Colours (EP 2386598 A1) in view of Stewart et al. (US 7,288,586 B2).
Regarding claims 1-9, 11 and 17, Holland Colours discloses packaging materials for making containers that may comprise PBT and oxidizable organic molecules comprising allylic positions such as polybutadiene and a transition metal catalyst such as iron salts (i.e. a polymer composition comprising i) a polyester, which is a copolymer based on 1,4-butanediol and at least one organic dicarboxylic acid; ii) an oxidizable organic polymer consisting of a branched or unbranched alkyl chain, which comprises at least one oxidizable C=C double bond; wherein the polyester according to (i) is a polyester based on 1,4-butanediol and terephthalic acid; which further comprises iii) at least one iron containing catalyst; wherein (i), (ii) and (iii) are present in the form of a blend; a polymer article comprising the polymer composition)([0001]-[0004], [0012]-[0013], [0021], claims 1, 9, 11-12). It would have been obvious to one of ordinary skill in the art to use any material disclosed by Holland Colours in any amount disclosed including the claimed materials and amounts and thereby arrive at the claimed invention.
Holland Colours does not specifically disclose that the oxidizable organic polymer is poly(1,4-butadiene).
Stewart discloses articles such as containers comprising a blend of polyester and an oxygen scavenging compound comprising an oxidizable polymer comprising 1,4-butadiene (C11/L65-C12/L5).
Holland Colours and Stewart are analogous art because they both teach about articles such as containers comprising blends of polyesters and oxidizable polymers comprising butadiene. It would have been obvious to one of ordinary skill in the art to use 1,4-butadiene as the polybutadiene in the article of Holland Colours because it is well-known to have oxygen scavenging properties and doing so would amount to nothing more than using a known material in a known environment to accomplish an entirely expected result.
Regarding claim 5, given that there does not appear to be any further compound capable of oxygen scavenging required in Holland Colours, it is the examiner’s position that it does not contain a further compound capable of oxygen scavenging.
Regarding claims 6 and 18, Holand Colours teaches the amount of oxidizable material in the polyester material may be 0.01 to 20% (i.e. overlapping containing the oxidizable organic polymer according to (ii) in a weight based ratio to the polyester according to (i) in a range of from 0.1:100 to 10:100 or 0.5:100 to 5:100)([0024]).
Regarding claims 7 and 19, Holland Colours teaches the amount of transition metal catalyst may be greater than about 10 ppm (i.e. overlapping containing the at least one iron containing catalyst according to (iii) in a weight based ratio to the polyester according to (i) in a range of from 0.0001:100 to 5:100 or 0.002:100 to 0.5:100)([0024]).
Regarding claim 8, it is noted that the iron containing catalyst (iii) and the additives (iv) are optional. Modified Holland Colours already teaches a composition comprising (i) and (ii) as set forth above and therefore meets the limitations of claim 8.
Regarding claim 9, given that the composition of Holland Colours is identical in structure and composition to the instantly claimed composition and those set forth in the instant examples (i.e. PBT polyester with an overlapping amount of polybutadiene and an overlapping amount of iron salt catalyst)(instant specification [0043], [0069], [0079]), it is the examiner’s position that it will intrinsically have an oxygen consumption of at least 5 mbar per gram polymer composition.
Regarding Claim 17, Holland Colours discloses that the article may be a packaging article ([0001]-[0003], claim 13).
Regarding claim 21, Holand Colours teaches the amount of oxidizable material in the polyester material may be 0.01 to 20% and the amount of oxidizable material in the polyester material may be 0.01 to 20% (i.e. overlapping comprising 97.88 to 99.38 weight percent PBT and 0.5 to 2 weight percent of poly(1,4-butadiene))([0024]). Alternatively, it is noted that it would have been obvious to adjust the amount of PBT and poly(1,4-butadiene) in order to provide the desired strength, gas barrier properties, oxygen scavenging properties and haze properties ([0002]-[0004], [0009]) and thereby arrive at the claimed invention depending on the desired end use.
Claims 8-9, 14-16, 20 and 22, are rejected under 35 U.S.C. 103 as being unpatentable over Holland Colours (EP 2386598 A1) and Stewart et al. (US 7,288,586 B2), as applied to claims 1 and 3 above, in view of Seth (US 2014/0374104 A1).
Regarding claims 8-9, 14-16, 20 and 22, Holland Colours discloses all of the claim limitations as set forth above. Holland Colours does not specifically teach that the iron containing catalyst is selected from the group consisting of Fe(III)stearate, Fe(III)pyrophosphate, Fe(III)citrate, Fe(III)acetylacetonate and mixtures of two or more of these Fe(III)salts.
Seth discloses well known iron catalysts including ferric pyrophosphate (i.e. Fe(III)pyrophosphate; Fe3+ containing salt)([0024]).
Holland Colours and Seth are analogous art because they both teach about iron salt catalysts. It would have been obvious to one of ordinary skill in the art to use Fe(III) pyrophosphate as disclosed by Seth as the iron salt catalyst in the composition of Holland Colours because it is a well-known iron salt catalyst and doing so would amount to nothing more than using a known material in a known environment to accomplish an entirely expected result.
Regarding claim 9, given that the composition of Holland Colours is identical in structure and composition to the instantly claimed composition and those set forth in the instant examples (i.e. PBT polyester with an overlapping amount of polybutadiene and an overlapping amount of Fe(III) pyrophosphate)(instant specification [0043], [0069], [0079]), it is the examiner’s position that it will intrinsically have an oxygen consumption of at least 5 mbar per gram polymer composition, determined according to reference example 2.
Regarding claim 16, given that it would have been obvious to use the Fe(III) pyrophosphate as disclosed by Seth as the iron salt catalyst in the composition of Holland Colours, it is the examiner’s position that it would be 100 weight % of the iron containing catalyst.
Regarding claim 22, given that polymers other than PBT and poly(1,4-butadiene) are not required, it is the examiner’s position that Holand Colours teaches an embodiment wherein the polymers of the composition consist of PBT and poly(1,4-butadiene).
Response to Arguments
Applicant's arguments filed 11 December 2025 have been fully considered but they are not persuasive.
Applicant argues that the instant invention provides unexpected results of improved oxygen scavenging properties and points to the Examples in Table I and the Declaration of Erik Gubbels dated 11 May 2025.
However, it is noted that the data presented is not commensurate in scope with the instant claims. The data presented is directed to PBT at 97.88 to 99.88 wt% or PBAT at 97.88 wt%, poly(1,4-butadiene) at 0.5 to 2 wt% and Fe(III) stearate at 0.12 wt%, or Fe(III) pyrophosphate at 0.12 wt%, or Fe(III)citrate at 0.12 wt%, or Fe(III)acac at 0.05 to 0.12 wt%, while instant claim 1 is broadly directed to a composition comprising a polyester, which is a copolyester based on 1,4-butanediol and at least one organic dicarboxylic acid and oxidizable organic polymer consisting of a branched or unbranched alkyl chain, which comprises at least one oxidizable C=C double bond, which is poly(1,4-butadiene).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES C YAGER whose telephone number is (571)270-3880. The examiner can normally be reached 9-6 EST M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Aaron Austin can be reached at (571) 272-8935. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAMES C YAGER/ Primary Examiner, Art Unit 1782
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